TERMS AND CONDITIONS


1.    GENERAL
      (a)   In these terms and conditions “the Company” means the entity to which this application for credit is made and includes its successors and assigns and “the Client” means the entity which is applying for credit in the application overleaf.
      (b)   These terms and conditions shall apply to the exclusion of all others including any terms and conditions of the Client (whether on the Client’s order form or otherwise).  The Client acknowledges that these terms and conditions constitute the whole agreement between the parties unless otherwise agreed in writing.
2.    PRICES
(a)   Orders are accepted on the condition that the works services and materials will be invoiced at the price ruling at the date the works services and materials are despatched. Unless specified to the contrary, prices quoted are exclusive of all GST, stamp duty and like levies or taxes. The company may amend prices at any time without prior notice.

  1. Any variation requested by the Client must be in writing on the Company’s Variation Form.  The Company will charge for and invoice for the requested variation as soon as the variation has been completed.

3.    PAYMENTS
(a)   The Client shall make payment to the Company for all works services and materials supplied within seven (7) days for all domestic Clients and within thirty (30) days for all commercial Clients from the date of invoice unless otherwise agreed in writing. Retentions for the purpose of practical completion shall be made within five (5) days of practical completion and any further retentions within thirty (30) days of the expiration of the retention period The Client acknowledges that time is of the essence with regard to payment and that any breach of this term will enable the Company to exercise all of its rights contained herein including (but without in any way limiting its rights) the right to cancel further credit and to take legal action for the recovery of all sums outstanding. 
(b)   The Client will be required to pay in full the quoted price for any customised equipment or specific order prior to the company acquiring the equipment or order.
(c)   Credit card payments will incur a 1.5% processing fee.
4.    INTEREST
      Should payment remain outstanding beyond the Company’s payment terms as outlined in clause 3 above, the Client agrees to pay interest on all amounts outstanding from the due date until the date of payment at a rate equal to 2% above the Company’s then overdraft rate as varied from time to time.
5.    COSTS
      Should payment remain outstanding beyond the Company’s payment terms as outlined in clause 3, the Client agrees to pay all legal costs (on a solicitor/own Client basis) and all Mercantile Agent’s fees (including any commission payable on the payment of the debt) incurred by the Company as a result of non-payment of the debt.
6.    COMPLETION OF WORKS

  1. In the event that the Client specifies a completion of works date, the Company shall use its best endeavours to comply with the Client’s requests.  In no circumstances will the Company be liable for any loss or damage of any kind whatsoever in the event that it is not able to comply with the Client’s request for works and services at a certain time.  The Client acknowledges and agrees that it will not make any claim against the Company for any loss or damage incurred as a result of late works and services.

7.    SUB-CONTRACTING
      The client hereby authorises the company to sub-contract all or any part of the works that the company has been contracted to carry out. The company in doing so may be required to agree to the sub-contractors terms and conditions of trade and the carrying out of the work by the sub-contractor will deem the client also bound by those terms and conditions. The sub-contractor in agreeing to carry out the work on behalf of the company shall also be deemed to have the benefit of these terms and conditions.
8.    CLAIMS

  1. It is the responsibility of the Client to check each delivery to ensure that the delivery is complete and in good condition. The Client will be deemed to have accepted the works services and materials as being in accordance with its order and received in good condition unless it notifies the Company in writing of any claim within fourteen (14) days of receipt of the works services and materials.
  2. The Company will not accept any return of works services and materials unless it has given prior written authorisation for the return and unless the returned works services and materials are in their original condition and packaging.  The Client is responsible for payment of any freight or delivery costs to return any works services and materials to the Company unless the Company agrees to pay such costs on the basis that the works services and materials were delivered in a damaged condition.

9.    JURISDICTION
      The proper law of all contracts arising between the Company and the Client is the law of the State of Victoria and the parties agree to submit to the jurisdiction of the Courts of that State.
10.  WARRANTY
(a)   All warranties whether express or implied and whether statutory or otherwise with regard to the works services and materials supplied by the Company as to quality, fitness for purpose or any other matter are hereby excluded except in so far as any such warranties are incapable of exclusion at law.
(b)   Where a manufacturers warranty exists then the Client may only rely on such warranty and shall not be entitled to rescind or cancel the contract or sue the Company for damages or claim restitution arising out of any misrepresentation made to him by any servants or agents of the Company.  The Client acknowledges that it has relied on its own skill and judgement in deciding to enter into this agreement and has not relied on any representation condition warranty covenant or promise made for and on behalf of the Company.
(c)   Any warranty provided by the Company shall not cover any defect or damage which may be caused by:
      (i)    Failure on the part of the Client to properly maintain any Works services and materials; or
      (ii)   Failure on the part of the Client to follow any instructions or guidelines provided by the Company; or
      (iii)  Any use of any Works services and materials otherwise than for any application specified on any documentation supplied with the works services and materials; or
      (iv)  The continued use of any Works services and materials after any defect becomes apparent to a reasonably prudent operator or user; or
      (v)  Fair wear and tear, any accident or act of God.
(d)   Any Warranty provided by the Company shall be voided in the event that the works services and materials are repaired or altered or replaced without the Company’s consent.
11.  INTELLECTUAL PROPERTY
      (a)   The Company shall retain the copyright in all drawings of any products produced for the Client unless otherwise agreed in writing.
      (b)   If the Client provides the Company with any specifications, designs or drawings for the production or manufacture of any item or items then the Client hereby warrants that the use of these designs, drawing or specifications will not infringe any third party’s rights and the Client hereby indemnifies the Company against any claims demands suits or actions in relation thereto.
12.  RIGHTS OF THE COMPANY TO DISPOSE OF WORKS SERVICES AND MATERIALS
      In the event that the Company retains or regains possession of the works, services and materials ordered by the Client and the Client has not paid for the works, services and materials within the Company’s terms of trade then the Company may dispose of the works, services and materials and may claim from the Client any loss the Company has suffered in relation to same.
13.  CHANGE OF OWNERSHIP
      The Client agrees to notify the Company in writing of any change of ownership of the Client within seven (7) days from the date of such change and indemnifies the Company against any loss or damage incurred by it as a result of the Client’s failure to notify the Company of any change.
14.  CANCELLATION
      Orders placed with the Company cannot be cancelled without the written approval of the Company.  In the event that the Company accepts the cancellation of any order placed with it, it shall be entitled to charge a reasonable fee for any work done on behalf of the Client to the date of the cancellation including a fee for the processing and acceptance of the Client’s order and request for cancellation.
15.  LIEN
      The Client hereby acknowledges that the Company has a lien over all works services and materials in its possession belonging to the Client to secure payment of any or all amounts outstanding from time to time.
16.  TITLE
(a)   Property in any works services and materials sold by the Company shall not pass to the Client until the Client has paid for the works services and materials in full and has paid all other monies outstanding under any other sale of works services and materials by the Company to the Client.
(b)   Risk of loss or damage to the works services and materials passes to the Client with possession. Until payment of the purchase price (and all other monies outstanding) the Client is to insure the works services and materials against all risk. Any insurance claim in respect of loss damage or destruction of the items or works services and materials is hereby assigned to the Company.
(c)   In the event that:-
(i)    the Client has failed to pay for the works services and materials as and when due;
(ii)   the Client has breached any of the conditions of this Contract;
(iii) the Client commits an act of bankruptcy or becomes bankrupt;
(iv) a controller is appointed to the Client;
(v) the Client is placed under external administration;
(vi) the Client enters into a scheme of arrangement with its creditors;
(vii)              execution is issued against the property of the Client and is returned unsatisfied; or

  1. the Client is insolvent; and
  2. then the Company may retake possession of any of its works services and materials which have been supplied to the Client and for this purpose the Company may enter any premises belonging to or occupied by the Client. The Client hereby grants right of entry to the Company for the purpose of retaking possession of its works services and materials and indemnifies the Company, its servants, agents and employees in relation to any loss or damage occurring as a result of retaking of possession of the works services and materials.

(d)   The Client hereby indemnifies the Company against any loss or damage to the works services and materials howsoever arising.
(e)   The Client is entitled to resell the works services and materials in the usual course of its business but the Company is to be paid from the proceeds of the sale the purchase price owed to the Company (and all other monies outstanding including interest, costs and collection costs) which proceeds, to the extent of the purchase price (and all other monies outstanding including interest, costs and collection costs) shall be kept in a separate account and held by the Client in trust for the Company.

  1. The Client shall, on request, disclose to the Company all relevant information regarding the works services and materials and any sale thereof by the Client.

17.  CHARGE
The Client hereby charges all its property whatsoever whether currently owned by the Client or acquired in the future with its indebtedness to the company.
18.  SITE PREPARATION
      (a)   The client agrees that it is the client’s responsibility to ensure that the work site will comply will all Victorian Occupational Health and Safety laws relating to building and construction sites and all other relevant safety standards or legislation.
      (b)   The company is not responsible for the removal of rubbish from the site either before or after the works and services, this is the responsibility of the client.
19.  ASBESTOS
      We have assumed that the site is free from asbestos.  However, should asbestos be encountered, we reserve the right to claim any costs incurred due to the asbestos discovery.
20.  ROCK AND SHALE
      No provision in our charging has been made for excavation of rock and shale and in the event that it is necessary to excavate rock and/or shale then additional charges shall apply.
21.  CONSENT TO CREDIT CHECK - PRIVACY ACT
By signing this form the Client acknowledges and authorizes the Company pursuant to the provisions of the Privacy Act to:-